Following a jury trial, Lakeisha Wilson-Bey and Sckeena Marbury, who are sisters, were both convicted of first-degree premeditated murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1996).*fn2 The two women were also found guilty of several other offenses stemming from the same homicide.*fn3

The prosecution's theory at trial was that Ms. Wilson-Bey, who was twenty-one years old at the time that the offenses were committed, was the principal in the premeditated murder of Tomika Blackwell, and that Ms. Marbury, who was then eighteen, participated as an aider and abettor.

Both women appealed from their convictions, contending principally that the trial judge instructed the jury erroneously with respect to the "intent" element of "aiding and abetting" first-degree premeditated murder. Specifically, appellants claim that the trial court committed reversible error, in the context of this case, by instructing the jury that "[a]n aider and abettor is legally responsible for the natural and probable consequences of the crime in which [s]he intentionally participates."

On April 7, 2005, a division of this court affirmed appellants' convictions. Wilson-Bey v. United States, 871 A.2d 1155 (D.C. 2005) (Wilson-Bey I). The division noted the existence of substantial authority casting doubt on the appropriateness of the "natural and probable consequences instruction," id. at 1161-62, 1165-66, but concluded that then-binding precedent in this jurisdiction required affirmance of the convictions. Id. at 1163-64. The members of the division expressed the view that consideration of the issue by the en banc court may be warranted. Id. at 1166.

Each appellant petitioned the full court to rehear the case, and on November 2, 2005, we granted both petitions and vacated the opinion of the division in Wilson-Bey I. See Wilson-Bey v. United States, 886 A.2d 77 (D.C. 2005) (per curiam) (en banc) (Wilson-Bey II). We now hold that the trial court's instruction regarding the requisite intent was erroneous, for in any prosecution for premeditated murder, whether the defendant is charged as a principal or as an aider or abettor, the government must prove all of the elements of the offense, including premeditation, deliberation, and intent to kill. Because the instruction given in this case omitted the mens rea element of the offense charged, the error was of constitutional magnitude. Concluding that the erroneous instruction was prejudicial as to Ms. Marbury but harmless beyond a reasonable doubt as to Ms. Wilson-Bey, we reverse Ms. Marbury's conviction of premeditated murder while armed. With a single exception unrelated to the principal issue before us, we affirm Ms. Marbury's other convictions and all of Ms. Wilson-Bey's convictions.*fn4

I. THE TRIAL COURT PROCEEDINGS

A. The Evidence

The facts relevant to these appeals were described in Wilson-Bey I, 871 A.2d at 1157-59, and we summarize them briefly, borrowing liberally from the division's narrative. On the evening of January 16-17, 2000, several young women were playing cards in an apartment in southeast Washington, D.C. An argument broke out between the decedent, Tomika Blackwell, and appellant, Sckeena Marbury, who had been drinking heavily. After the two women, whose quarrel was causing a disturbance, left the apartment at the request of their hostess, the dispute escalated from words to blows, and Ms. Blackwell easily bested Ms. Marbury in the fight that followed. At the conclusion of the encounter, Ms. Marbury was lying on the ground with a bloody nose, a knot on her head, a busted lip, and an injured eye. By all accounts, Ms. Marbury was both drunk and angry.

In the hours after her beating, Ms. Marbury related to several of her friends that she had been "jumped" by Tomika Blackwell and two of Tomika's alleged confederates. According to Teresa Brown, in whose car Ms. Marbury was riding away from the scene of the fight, a "ranting and raving" Ms. Marbury proclaimed that "I'm coming back. I'm going to kill that bitch."*fn5 Appellant Lakeisha Wilson-Bey, who had clashed with Ms. Blackwell on a previous occasion,*fn6 was notified of her younger sister's beef, and resorting to terminology identical to that allegedly used by Ms. Marbury, she stated in front of the group of young women that had gathered in the wake of the fight that she was going to "kill that bitch."*fn7 Eventually, the group of eight, including both appellants, armed themselves with knives and baseball bats and set out in a van for Ms. Blackwell's apartment. Their ostensible plan was to find out why Ms. Marbury had been beaten up and to avenge Ms. Marbury by fighting Ms. Blackwell and her friends. All of the women in the van were subsequently charged with first-degree premeditated murder while armed, but several of them agreed to cooperate with the government in exchange for negotiated plea agreements, and three testified at trial against the appellants.*fn8 The facts described below are based largely on their testimony and that of Ms. Blackwell's boyfriend, Arnold Rucker. The prosecution witnesses were all impeached, at least in some measure, but there was evidence which, if credited, would permit an impartial jury to find that both appellants set out deliberately to murder Ms. Blackwell in retaliation for her having beaten up Ms. Marbury, and that Ms. Wilson-Bey repeatedly stabbed the decedent, thus carrying out this premeditated plan. The sufficiency of the evidence cannot be persuasively disputed by either appellant.

The van in which the eight young women travelled to seek out Ms. Blackwell was owned and driven by appellants' friend, Angel Lewis. When the vehicle arrived outside Ms. Blackwell's apartment house, the two appellants and their friend Lashawn Miller ran up to Ms. Blackwell's unit, Apartment 304. According to prosecution witnesses, Ms. WilsonBey had a large butcher knife or steak knife*fn9 in her hand, and Ms. Marbury was carrying both a bat and a knife. The other occupants of the van, several of them armed, followed the initial trio up the stairs.

At the time the appellants arrived on the scene, Ms. Blackwell was inside the apartment with Mr. Rucker and another woman. Rucker became aware of the commotion outside, and he heard someone calling for Ms. Blackwell. Rucker opened the door, and he observed what he described as "a rack of females" in the hall. He testified that several of the women were carrying weapons. Rucker did not know Ms. Wilson-Bey,*fn10 but he recognized Ms. Marbury as the young woman whom Ms. Blackwell had fought and bested earlier that night. According to Rucker, Ms. Wilson-Bey was at the head of the group, holding a butcher knife, and she asked for Tomika. Ms. Blackwell walked to the door, stood behind Rucker, and announced: "I'm right here." Although she was not armed, Ms. Blackwell advanced on Ms. Wilson-Bey. Rucker tried unsuccessfully to restrain Ms. Blackwell, but while he was attempting to do so, Ms. Wilson-Bey swung the knife at Ms. Blackwell several times, inflicting a stab wound near her victim's right eye. Ms. Blackwell, bleeding profusely, nevertheless tried to fight her knife-wielding assailant. The two women struggled on the floor, with Ms. Blackwell on top, and during the ensuing melee, Ms. Wilson-Bey (and apparently one or more other assailants)*fn11 stabbed Ms. Blackwell several more times. One witness testified that Ms. Marbury struck Ms. Blackwell with a bat while Ms. Wilson-Bey was stabbing her; according to Rucker, however, Ms. Marbury was initially just standing there, crying.*fn12

At approximately 4:00 a.m. on January 17, officers from the Metropolitan Police Department arrived at the apartment. They found Ms. Blackwell unconscious, and she was suffering from multiple wounds to the face and body. The officers transported Ms. Blackwell to D.C. General Hospital. At 4:30 a.m., Tomika Blackwell was pronounced dead.

Ms. Blackwell was not the only person who suffered injury to person or property as a result of the criminal activities of the appellants and of the other members of their group. Arnold Rucker was stabbed in the arm, and although he left the hospital before being treated,*fn13 he later testified that he suffered intense pain for two weeks, and the wound left a large scar. Moreover, after the appellants and their friends left Ms. Blackwell bleeding to death in her apartment, they proceeded to the home of Teresa Brown, in whose car Ms. Marbury had earlier left the scene of the fight; they did so because Ms. Marbury had stated that Ms. Brown was one of the women who had joined Ms. Blackwell in attacking Ms. Marbury. Upon arrival at Teresa Brown's apartment house, the women tried to locate Ms. Brown's unit, and they yelled at Ms. Brown to come out. Ms. Wilson-Bey allegedly threatened to kill Ms. Brown; Ms. Marbury allegedly made a similar threat to Ms. Brown's fiancé. When Ms. Brown declined to leave her apartment, several of the women took turns stomping on Ms. Brown's automobile, and they shattered the car windows, inflicting over $700 worth of damage. There was also evidence that after the women had left Ms. Brown's car and apartment and completed the night's revenge-seeking activities, Ms. Wilson-Bey telephoned her brother and gave him the names of all the women who were present at the homicide, thereby implying a threat of reprisal in case any of them "snitched."

A forensic pathologist called by counsel for Ms. Wilson-Bey testified that Ms. Blackwell died as a result of a stab wound in the neck. The witness opined that the fatal injury had been inflicted by a small knife with a narrow blade, and that it could not have been caused by a knife as large as the one Ms. Wilson-Bey was alleged to be carrying.*fn14 At the trial, Ms. Wilson-Bey's attorney contended that his client neither killed the decedent nor intended to kill her; he also argued that Ms. Wilson-Bey was acting in self-defense.

Ms. Marbury's defense was essentially that she was hopelessly drunk and that she took no part in the armed assault on Ms. Blackwell. Neither appellant testified.

B. The Aiding and Abetting Instruction

The issue that led this court to consider this case en banc initially arose at trial when the prosecutor -- not either defense attorney -- asked for a modification of the Redbook Instruction*fn15 on aiding and abetting. The prosecutor's stated goal was to ensure that the government would not be required to prove, in order to secure a first-degree conviction, that Ms. Marbury premeditated the murder or specifically intended that the decedent be killed. Although the government had identified Ms. Wilson-Bey as the principal in the armed premeditated murder of Ms. Blackwell,*fn16 the prosecutor contended that, as an aider or abettor, Ms. Marbury was guilty of the same offense. The prosecutor argued that Ms. Marbury did not have to go with the specific intent to commit the ultimate crime, which in this case would be the killing. [A]ll [that] would be necessary was that she participate in some unlawful manner while present and that she have some desire to participate and to make whatever the unlawful purpose was to succeed in this case.

Subsequently, the prosecutor added:

[O]ur concern is that the jurors would think that the crime in this case is the ultimate crime which was the murder, as opposed to the defendant being guilty if they [sic] participated in any unlawful way at the scene, whether there was the intent to kill, which was the crime, or merely participated in the assault. . . . I want the jury . . . to be clear that as long as they're there and participating [in] the assault, what's going on on that platform, then [all] the defendants can be found guilty [of premeditated murder while armed]. This all goes to foreseeability, natural and reasonable consequences of the acts. I just don't want them to hold the defendants to the commission of the murder.

In order to make it clear to the jury that Ms. Marbury could properly be convicted of armed premeditated murder without intending that Ms. Blackwell be killed, the prosecutor asked the trial judge to modify Instruction 4.02 (Aiding and Abetting) of the 1993 Redbook by making intentional participation in a "criminal venture" (and not merely in a specific crime) a sufficient basis for conviction of first-degree premeditated murder while armed. The judge expressed agreement with the prosecutor's approach, and over defense objection,*fn17 he modified Redbook Instruction No. 4.02 by adding the language italicized below:

Any person who in some way intentionally participates in the commission of a crime or a criminal venture, aid[s] and abets the criminal offender. She, therefore, is as guilty of the crime as she would be if she had personally committed each of the acts that make up the crime.

To find that the defendant aided and abetted in committing a crime, you must find that the defendant knowingly associated herself with the person who committed the crime or criminal venture, that she participated in the crime or criminal venture as something she wished to bring about, and that she intended by her actions to make it succeed.

Quoting two bracketed sentences from the Redbook instruction, the judge also charged the jury:

It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that she have intended to commit the particular crime by the principal offender. An aider and abett[o]r is legally responsible for the acts of other persons that are the natural and probable consequences of the crime or criminal venture in which she intentionally participates.

(Emphasis added.) In light of the foregoing italicized language, the court's instruction did not require the prosecution to prove that Ms. Marbury acted upon a premeditated design to kill Ms. Blackwell, that she specifically intended Ms. Blackwell's death, or even that Ms. Marbury knew that her sister (or anyone else) intended to kill the decedent. Cf. Hackney v. United States, 389 A.2d 1336, 1341 (D.C. 1978), cert. denied, 439 U.S. 1132 (1979) (quoting ROLLIN M. PERKINS, CRIMINALLAW 662 (2d ed. 1969)). On the contrary, the jury was explicitly instructed that Ms. Marbury need not be shown to have intended to commit premeditated murder while armed, even though premeditation and deliberation are elements of that offense. See Mills v. United States, 599 A.2d 775, 781 (D.C. 1991).

Ms. Marbury's attorney, as we have noted, objected to the insertion into Redbook Instruction No. 4.02 of the "criminal venture" language. He complained that [i]f you put criminal venture, it negates the same intent as the principal and it makes -- just makes her responsible for anything that happens there. I mean regardless whether or not she had specific intent or whether or not she was just there. I mean -- and that wording it says, look, if you're [there], regardless what happens, you're responsible for it if you use criminal venture.

Although neither defense attorney requested the judge not to give the "natural and probable consequences" instruction, Ms. Marbury's attorney did implicitly argue, in the passage quoted above, that his client, as an aider and abettor, must be shown to have "the same intent as the principal," i.e., the premeditated intent to kill, in order to be guilty of premeditated murder.

Both appellants were found guilty, inter alia, of first-degree premeditated murder while armed. Each was sentenced to serve an aggregate term of thirty-six years to life.

II. THE STANDARD OF REVIEW

In the order granting appellants' petitions for rehearing en banc, the court explicitly directed the parties to address the applicable standard of review. Wilson-Bey II, 886 A.2d at 78. In this case, the issue as to the proper standard arises in a somewhat unusual posture, because

1. although, in the trial court, appellants objected to a modification of the applicable Redbook instruction on grounds that, if valid, could not be reconciled with the bracketed "natural and probable consequences" language in the instruction itself, neither appellant explicitly objected to that bracketed portion of the instruction; both appellants, however, now challenge that portion on appeal; but 2. in its initial brief to the division, the government did not claim that appellants had failed to preserve the issue raised on appeal, thus arguably waiving the point and implicating the "waiver of the waiver" principle.*fn19

Moreover, in its brief to the en banc court, the government only perfunctorily addressed the question whether appellants' claim of instructional error was preserved and whether this court's review should be for plain error.*fn20

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